Category: Attendant Care Benefits

J.M. v. Wawanesa Mutual Insurance Company (18-006148)

The insurer sought reconsideration of the Tribunal’s award of $6,000 per month in ACBs. The claimant was involved in an accident in 2015 and deemed catastrophically impaired three years later. The claimant’s Form 1 recommended $8,467.65 worth of ACBs per month; the insurer’s Form 1 supported $1,583.45 in ACBs per month. The insurer argued that the Tribunal erred in its decision, and that the evidence showed that the claimant was largely independent at the time the Form 1 was submitted, that the Tribunal did not properly apply the “but for” test, that the Tribunal incorrectly admitted late evidence, and failed to apply the proper law in relation to ACBs. Adjudicator Lester reiterated the exhaustive list of reasons why such a high quantum of ACBs were warranted and rejected the reconsideration request. She further commented that, although the claimant’s Form 1 was not included in the evidence brief prior to the hearing, the insurer had a chance to object to it being admitted into evidence at the hearing and did not, it was also a key piece of evidence that caused no prejudice to the insurer as it was aware of it prior to the hearing. Although the claimant and her treating therapists did not specifically elaborate on a precise breakdown of each line of the Form 1 in dispute, Adjudicator Lester was satisfied that it was reasonable on the grounds of the claimant’s psychological injuries requiring a higher level of assistance, such as cueing.

Applicant v. State Farm Mutual Automobile Insurance Company (18-000605)

The claimant sought a catastrophic impairment determination, entitlement to attendant care benefits, and the cost of various assessments. The claimant suffered from chronic pain, had not worked in the 10 years since the accident, and had been diagnosed with major depressive disorder. Pain prevented the claimant’s participation in home-based activities, and she rarely left the house. Adjudicator Parish found that the claimant suffered a Class 4 marked impairment in activities of daily living (no other spheres of function were found to be Class 4). In terms of the WPI, Adjudicator Parish would have assigned 40 percent for the psychological impairment and 7 percent for physical impairment, meaning that the claimant did not have a 55 percent WPI. Adjudicator Parish awarded retroactive ACBs of $507.03 per month for assistance with meal preparation. She rejected the claims for grooming (the claimant was capable of independent hair care), bathroom cleaning (which was found to be housekeeping, not attendant care); and basic supervisory care (the Form 1 category was for emergency assistance, but the claimant did not lack the capacity to respond to an emergency; emotional care was not an appropriate attendant care service). Adjudicator Parish also awarded the cost of an OT situational assessment related to the catastrophic impairment application. She also awarded the cost of the in-home assessment to complete the Form 1. Adjudicator Parish also held that the claimant was not required to meet the strict “incurred” definition for payment of ACBs, because the accident occurred in 2009. Interest was awarded on ACBs, but only from the date the Form 1s were submitted.

Applicant v. The Dominion of Canada General Insurance Company(18-002185)

The claimant sought a determination that the HST paid with respect to the attendant care services provided should be paid outside of the attendant care benefit limit, and a special award for unreasonably withholding payments of the attendant care benefit by paying HST out of the benefit limit. Adjudicator Gosio was persuaded by the claimant’s submissions, and found that HST should be paid outside of the attendant care benefit limits. However, Adjudicator Gosio concluded that the insurer had not unreasonably withheld payment of the attendant care benefit, as both the SABS and the mandatory FSCO Guidelines were silent with respect to the handling of HST in the attendant care benefit context, and thus the insurer’s interpretation of its obligations was not so unreasonable as to warrant an award.

T.A.K. v. Aviva General Insurance Company (18-008232)

The claimant sought entitlement to IRBs, ACBs, and a special award. The claim for IRBs only concerned the weekly quantum. Adjudicator Neilson held that the insurer was entitled to deduct CPP Disability Benefits, and entitled to deduct income reported on the claimant’s tax returns which the claimant could not provide documentation for. She was critical of the claimant’s lack of disclosure of his income, particularly given that he had filed his taxes after the date of loss. After the claimant turned 65, even though an IRB was not actively being paid, the insurer was entitled to reduce the weekly IRB in accordance with the SABS. Adjudicator Neilson held that the formula applied whether an IRB was being paid, or was later found to be payable. She issued a special award of 35 percent based on the insurer’s improper deduction of 100 percent of post-accident income rather than 70 percent. Adjudicator Neilson dismissed the claims for ACBs, holding that many of the claimant’s reported care needs arose from conditions unrelated to the accident (such as a strokes and post-accident falls). She was critical of the claimant’s assessors and treatment providers for not addressing causation.

C.C. v. Erie Mutual Insurance Company (18-010778)

The claimant sought entitlement to NEBs and ACBs. Adjudicator Boyce dismissed the claims. He held that the claimant failed to place sufficient evidence before Tribunal regarding her pre-accident activities, her post-accident activities, the changes she experienced because of the accident, and the activities she placed most importance on. Further, the evidence available suggested that the claimant continued to maintain independence with self-care and activities of daily living. Surveillance showed her engaging in normal activities as well. In terms of the claim for ACBs, Adjudicator Boyce concluded that the claimant’s own self-reporting did not support the need for personal care. There was also no evidence of personal care services being incurred.

S.M. v. Wawanesa Mutual Insurance Company (18-008474)

The claimant suffered a catastrophic impairment in a 2000 accident due to a GCS of 4. He sought entitlement to ACBs of over $5,000 per month, and sought retro-active ACBs back to 2015. Adjudicator Johal held that the claimant was not entitled to elevated retroactive ACBs because he provided no evidence why it was impossible or impractical to submit an updated Form 1 in 2015. In terms of ACBs from the date of the Form 1 submission onwards, the claimant was entitled to some assistance with intermittent care and financial affairs; he was not entitled to 24-hour care because he was sufficiently able to manage his routines and was able to respond to emergencies or changes in his routine. In terms of the incurred expense requirement, Adjudicator Johal concluded that the post-2010 definition applied to all ACBs claimed after 2010, and that the claimant could only seek entitlement to the amount of assistance actually incurred.

K.D. v. Jevco Insurance (18-005057)

The claimant sought entitlement to NEBs and ACBs; the insurer argued that no NEBs were payable before a Disability Certificate was submitted and that no ACBs were payable before a Form 1 was submitted. Adjudicator Norris agreed with the insurer and held that no claims were payable until the requisite forms were submitted to the insurer. The claimant was permitted to proceed with the hearing relating to NEBs after the Disability Certificate was submitted.

C.M. v. Wawanesa Mutual Insurance Company (18-008199)

The claimant sought entitlement to attendant care benefits and a number of treatment plans for occupational therapy and physiotherapy services. Adjudicator Boyce concluded that the claimant was not entitled to attendant care as she had not demonstrated that the services were “incurred” pursuant to section 3(7)(e) of the SABS. The claimant did not provide evidence that the care was provided by a professional service provider, nor that her mother sustained an economic loss. Adjudicator Boyce also concluded that the disputed treatment plans were not reasonable and necessary, noting that aside from the OCF-18s listing her impairments and the retroactive expert reports, the claimant had provided no corroborating records from medical professionals to support the treatment sought nor the injuries claimed. Given the claimant’s failure to produce medical evidence concurrent with the accident, Adjudicator Boyce found no reason to interfere with the insurer’s determinations.

D.K. v. The Guarantee Company of North America (18-007722)

The claimant sought entitlement to attendant care benefits in the amount of $3,022.33 per month, physical treatment proposed in three treatment plans, and the cost of various expenses related to food, prescriptions, assistive devices, and other goods. Vice Chair Lester found that the claimant was entitled to the physical treatment plans and the cost of non-prescription Tylenol. The clamant was not entitled to attendant care benefits based on a finding that the benefits were not reasonable and necessary, and there was no evidence the non-professional service providers sustained an economic loss. The decision refers to a s. 25 Form 1 but it does not indicate that a s. 44 Form 1 was completed. Vice Chair Lester found that the recommendation for $3,022.33 in attendant care services did not coincide with the test results that demonstrated the claimant had the functional ability to complete tasks. Expenses related to fibromyalgia were not payable as this was a pre-existing condition, and the claimant had not submitted medical evidence to show the condition was worsened by the accident.

G.W. v. Coachman Insurance Company (16-003306)

The insurer sought reconsideration of the adjudicator’s decision regarding entitlement to ACBs, interest, and a special award. The claimant sought reconsideration of the adjudicator’s finding of an end date for IRBs and ACBs, and the formula used to calculate the quantum of the special award. Vice-Chair Marzinotto partially granted both the insurer’s and the claimant’s requests. She held that the amount payable for ACBs based on a finding of unreasonably withholding benefits under s. 3(8) of the SABS was limited to the economic loss incurred by the claimant’s wife, which was less than the Form 1 amount. Vice-Chair Marzinotto found that the arbitrator did not err in finding an end date for IRBs and ACBs at the 104-week mark as the hearing took place in the pre-104 week period and there was no evidence submitted on post-104-week entitlement. Vice-Chair Marzinotto held that the formula for calculating the maximum amount available for a Special Award is: 50 percent x (benefits that were unreasonably withheld or delayed + SABS interest on these benefits calculated under the Schedule + compound interest calculated according to s.10 O. Reg.664).